In re the Probate of the Last Will & Testament of Ingersoll

New York Court of Appeals

In re the Probate of the Last Will & Testament of Ingersoll

4 Silv. Ct. App. 11, 42 N.Y. St. Rep. 752

DecidedFebruary 5, 1892

StatusPublished

This text of 4 Silv. Ct. App. 11 (In re the Probate of the Last Will & Testament of Ingersoll) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re the Probate of the Last Will & Testament of Ingersoll, 4 Silv. Ct. App. 11, 42 N.Y. St. Rep. 752 (N.Y. 1892).

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Opinion

Per Curiam.

—We think the judgment of the general term, herein should be reversed and the decree of the surrogate affirmed.

The eighth clause of the will we have no doubt creates a trust and does not make an unconditional gift of the money to the executor, which he could dispose of as he thought fit. The language is not merely precatory. It is clear, distinct and certain and it gives the money to the executor u for the uses and purposes ” named in the clause. Those uses and purposes cannot be carried out. What follows that language is simply a written statement of what is implied in every gift to a trustee, viz.: that the donor relies upon the trustee to carry out his wishes.

It is unnecessary to say more in this case than that we agree generally in the views expressed in the dissenting opinion of Mr. Justice Macomber at the general term upon this point, while expressing no opinion upon the question therein also discussed, whether in any aspect the gift violates the statute in regard to bequests to charitable societies as made within two months before the death of the testator.

The judgment of the general term must be reversed and the decree of the surrogate affirmed, with costs of both parties payable out of estate.

All concur.

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Per Curiam.

—We think the judgment of the general term, herein should be reversed and the decree of the surrogate affirmed.

The eighth clause of the will we have no doubt creates a trust and does not make an unconditional gift of the money to the executor, which he could dispose of as he thought fit. The language is not merely precatory. It is clear, distinct and certain and it gives the money to the executor u for the uses and purposes ” named in the clause. Those uses and purposes cannot be carried out. What follows that language is simply a written statement of what is implied in every gift to a trustee, viz.: that the donor relies upon the trustee to carry out his wishes.

It is unnecessary to say more in this case than that we agree generally in the views expressed in the dissenting opinion of Mr. Justice Macomber at the general term upon this point, while expressing no opinion upon the question therein also discussed, whether in any aspect the gift violates the statute in regard to bequests to charitable societies as made within two months before the death of the testator.

The judgment of the general term must be reversed and the decree of the surrogate affirmed, with costs of both parties payable out of estate.

All concur.

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4 Silv. Ct. App. 11, 42 N.Y. St. Rep. 752, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-probate-of-the-last-will-testament-of-ingersoll-ny-1892.